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Declaration of Independence: Preamble

When the colonists of North America decided that they were fed up with abuse and taxation from the government of Great Britain, they formally stated their opinion and their intentions in a letter to the King which today is known as the Declaration of Independence. This is the first of a series of articles in which we will explore this document and its relation to freedom of religion.

Researched and written by Jim Allison

The Declaration of Independence is made up of five distinct parts: the introduction; the preamble; the body, which can be divided into two sections; and a conclusion.

The introduction states that this document will "declare" the "causes" that have made it necessary for the American colonies to leave the British Empire.

Having stated in the introduction that independence is unavoidable, even necessary, the preamble sets out principles that were already recognized to be "self-evident" by most 18th-century Englishmen, closing with the statement that "a long train of abuses and usurpations . . . evinces a design to reduce [a people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

PREAMBLE

Some claim all of this is the preamble:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

Display the preamble to the Declaration of Independence on the chalkboard or on newsprint. The text reads:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

Either way the following has something to say on the matter:

WHAT IS A PREAMBLE

(1) Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the statute and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed. It has been held however to not be an essential part of act, and neither enlarges nor confers powers.

(2) PREAMBLE. A preface, an introduction or explanation of what is to follow: that clause at the head of acts of congress or other legislatures which explains the reasons why the act is made. Preambles are also frequently put in contracts to, explain the motives of the contracting parties,

2. A preamble is said to be the key of a statute, to open the minds of the makers as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statutes. It cannot amount, by implication, to enlarge what is expressly given. 1 Story on Const. B 3, c. 6. How far a preamble is to be considered evidence of the facts it recites, see 4 M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720; and see, generally, Ersk. L. of Scotl. 1, 1, 18; Toull. liv. 3, n. 318; 2 Supp. to Ves. jr. 239; 4 L. R. 55; Barr. on the Stat. 353, 370.

[This was a essay on the Australian Constitution but it has some interestign points to it ]

I INTRODUCTION

. . . A preamble does not make law – but rather it introduces the laws that follow. Political agendas and fear campaigns over the last few years have managed to cloud the issues sufficiently for the national interest to be deftly sidestepped.

The constitutional preamble is the opening text that comes before the enacting clause, the introductory covering clauses and the substantive sections of the Commonwealth Constitution itself. We've had the current preamble since the Constitution was enacted 100 years ago, but for more than a decade now, there has been talk about getting ourselves a brand new preamble. New words for a new era. There are lots of obvious reasons why a new preamble seems like a good idea: the original preamble has historical omissions (eg failure to mention indigenous people and failure to mention Western Australia), it lacks soul, and it fails miserably to embody any aspirational national text.

Isn't it ironic that Australians can rarely quote any words from our Constitution, but we are pretty familiar with the "We the people" of the preamble to the Constitution of the United States of America 1787 (US), and the "all … are created equal … endowed by their Creator with certain unalienable rights" of the American Declaration of Independence 1776 (US). . . .

Although the preamble is not a source of power for any department of the Federal Government,1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.2 ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?''3

Footnotes

1 Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

2 E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1

SOURCE: http://caselaw.lp.findlaw.com/data/constitution/preamble/

Preambles have no power, no authority no force; they are not an essential part of the law or constitution, in short aren't law. Nor is the Declaration of Independence as a whole a preamble to the Constitution as some have claimed

OBJECTIONS ADMITTING THE PRINCIPLE INVOLVED,BUT URGED AGAINST THE EXPEDIENCY OF THE MOVEMENT.

Objection 1. The Constitution already acknowledges God.

The objector says, substantially: "The proposed amendment is just and proper, but it is unnecessary. God and Christianity are now acknowledged in the fundamental law of the nation." And what is the proof of such acknowledgment? The word oath, a passing reference to the Christian Sabbath in the clause, "Sundays excepted," making the Sabbath a dies non in the reckoning of days during which the Resident may retain a bill for approval, the mention of the common law, and the formula of date. These are all. They hardly require notice. It may be said in brief, however, that the mention of the Sabbath is simply an incidental allusion, an evidence, indeed, that there was a Sabbath known; but it is no acknowledgment of the obligation of the Sabbath. The dating again is no part of the instrument. It merely marks the time. And more than all else, the name of God was excluded from the form of the President's oath, incorporated in the Constitution. Can these features of the Constitution, with a mention of the common law, be regarded as an adequate acknowledgment of the nation's subjection to God and his government? It is now almost universally admitted that they are not religious acknowledgments at all. So completely devoid is our Constitution of any religious character that multitudes of both infidels and Christians agree in stating that it is no more Christian than Mohammedan. As Ex-President Woolsey declared in his paper read before the Evangelical Alliance, it needs no change to adapt it to a Mohammedan nation. Admiring, as we do, the many exellencies of our Constitution, we are constrained to admit this sad defect. If it is still claimed that an acknowledgment of God and Chris-

3

tianity is in the Constitution, it must also be admitted that such an acknowledgment, now dimly there at best, should be made so clear and explicit that no room may be left for doubt. What is there rightfully ought to be there indisputably.*

_______________________

* For another remark In this connectian, see last page

[the following is the last page referenced]

Since the foregoing pages were stereoyped the First Objection has been brought to our notice in another form by an eminent citizen of New England. He says "The Declaration of Independence is really the, full Preamble of the Constitution. It sets forth sentiments and principles; the Constitution follows it with rules and regulations. That document, at the outset, declares it to be a self-evident truth that all men are created equal and endouved by their Creator with all their rights; and closes with an appeal 'to the Supreme Judge of the World.'"

We are fully sensible of the value of these expressions in the Declaration. They prove that the nation then owned her allegiance to God. They vindicate her right, now strenuously denied, to acknoxvledge God in public documents. They show that what we propose is consistent with the spirit and exantple of our fathers, in the noblest passages of our history. But we must clearly distinguish betwcen these two documents. The Declaration is not part of the written Constitution. Its value is historical rather than legal. It is a deed of the nation which has passed into history; the Constitution, as a law, is an ever-present act of the nation's will.. The argument which is drawn from the silence of the Constitution concerning God and Religiou against all Christian features of our government as contrary to " our political covenant," nut covered by the bond, cannot be adequately met by an appeal in the Declaration of 1776.

SOURCE: The Christian Statesman Tracts No. 6, Answers to Objections to the Religious Amendment of the United States Constitution. By the Rev. D. M'allister. (1874)

. . . yet lawyers generally and the Supreme Court in particular, have been reluctant to treat the Declaration as part of American Organic Law, or even to accord it the restricted status of the Preamble tp the constitution.

SOURCE: The Oxford Companion to the Supreme Court of the United States, Kermit Hall, editor (New York: Oxford University Press, 1992), p. 223,

"Congress has placed the Declaration of Independence at THE HEAD OF THE UNITED STATES CODE, under the caption 'The organic Laws of the United States of America.' [1 US Code xxxv-xxxvii (1982 ed.)] The Supreme Court has accorded it binding legal force, for example, in resolving questions of alienage (Ingles v. Trustees of Sailors Snug Harbor, 1830)."

>:|> >:|

>:|> >:|Now, in the event that you don't understand the term "organic law," see BLACK'S LAW DICTIONARY (the standard dictionary for legal practitioners). BLACK's defines "organic law" as "the FUNDAMENTAL law or constitution of a state or nation, written or unwritten. That law or system of laws or principles which defines and establishes the organization of its government."

>:|> Nice try but no cigar.

>:|> The Declaration of Independence is not a Constitution, nor it is a fundamental law of anything.

>:|Aha, Buckeye is now more an expert on law than either the editors of >:|Black's Law Dictionary or the editors of Oxford's Companion to the >:|Supreme Court.

Just more honest than Richard Gardiner AKA Ambrose Searle.

Here is what Richard Gardiner AKA Ambrose Searle provided:

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To wit, The Oxford Companion to the Supreme Court of the United States, Kermit Hall, editor (New York: Oxford University Press, 1992), p. 223, states,

"Congress has placed the Declaration of Independence at THE HEAD OF THE UNITED STATES CODE, under the caption 'The organic Laws of the United States of America.' [1 US Code xxxv-xxxvii (1982 ed.)] The Supreme Court has accorded it binding legal force, for example, in resolving questions of alienage (Ingles v. Trustees of Sailors Snug Harbor, 1830)."

============================================

[He also said]

The fact that the Supreme Court has treated the Declaration of Independence as a binding statement of law is demonstrable in a multitude of cases:

===============================================

LOL, CHECK OUT WHAT WAS REALLY SAID ABOUT THIS BELOW.

[EMPHASIS ADDED]

****The constitutional and legal status of the Declaration of Independence is curiously ambiguous.**** John Hancock (in his capacity as president of the Second Continental Congress) and James Madison both considered it to be, in Madison's words, "the fundamental Act of Union of these States." Reflecting that view, Congress has placed it at the head of the United States Code, under the caption, "The Organic Laws of the United States of America." ****The Supreme Court has INFREQUENTLY accorded it binding legal force, for example, in resolving questions of alienage (Inglis v. Trustees of Sailor's Snug Harbour, 1830). Yet lawyers generally, and the Supreme Court in particular, have been reluctant to treat the Declaration as part of American organic law, or even to accord it the restricted status of the Preamble to the Constitution.**** Conservatives like Daniel Webster denied that there is a constitutionally recognized right of revolution, and those state supreme courts that have addressed the issue in the twentieth century have adopted Webster's view.

****Reformers, such as antebellum abolitionists, insisted that the Declaration was part of the constitutional order, while their opponents, including John C. Calhoun, denigrated its authority and validity.**** The adoption of the 'Thirteenth and Fourteenth Amendments allayed the urgency of that question by incorporating concepts of equality, freedom, and citizenship into the operative constitutional text.

Nevertheless, the Declaration of Independence endures as the basic statement of the principles of American government. Abraham Lincoln invoked its authority in the supreme crisis of the union, and it remains today the foundation of our constitutional order.

SOURCE: The Oxford Companion to the Supreme Court of the United States, Kermit Hall, editor (New York: Oxford University Press, 1992), p. 223,

What was actually said isn't nearly so helpful to Richard Gardiner AKA Ambrose Searle.

This is a standard tactic employed by Richard Gardiner AKA Ambrose Searle. Time and time again in the past, he was caught with his hand in the cookie jar, i.e. selectively posting some section of something that appears to support his position, however, when it was checked out, and it was frequently checked out, what he didn't include deluded or totally altered that which he did provide to the point of being neutral or damaging to his position.

I had mentioned earlier that I had copied the first few pages of the US Code from Volume 1 of the U S Code at Regent U, School of Law, Law Library a couple years ago and that I thought it did not mention Organic Laws. I cannot put my fingers on that at this precise moment, so I will leave it on hold till I do round it up. I could possibly be mistaken regarding what I remember about it, or I could be correct, time will tell when it turns up here, which it will turn up. However, in my errand running today I copied from the current books they have there:

United States Code, 1988 Edition, Containing the General and Permanent Laws of the United States, in force on January 3, 1989. Volume one. Organic laws, Title 1 - General provisions to Title 6-Surety Bonds.

Under a section numbered XXXVII - LXVII, Titled Organic Laws of the United States of America, it contains the Declaration of Independence, The Articles of Confederation, The Northwest Ordinance and the Constitution.

Fact of the matter is, the latter three of those were, in fact, at some time or other actually in force and enforceable laws. The Constitution, of course, still is law, the supreme law of the land.

The Declaration of Independence never was a law.

One has to wonder, if they want it to be a law, what was it enacting? Under whose authority? What was the punishment for not carrying whatever enacted out?

Now, in the event that you don't understand the term "organic law," see BLACK'S LAW DICTIONARY (the standard dictionary for legal practitioners). BLACK's defines "organic law" as "the FUNDAMENTAL law or constitution of a state or nation, written or unwritten. That law or system of laws or principles which defines and establishes the organization of its government."

Since he endorsed it so strongly he is going to have to stand by it with regards to this from the same dictionary: The legal definition of a preamble is:

Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the statute and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed. It has been held however to not be an essential part of act, and neither enlarges nor confers powers.

In case it is too complicated for you, preambles have no power, no authority no force -- they are not an essential part of the law or constitution; in short, a preamble isn't law and has little meaning.

Since much of what certain people like to claim from the Declaration of Independence rests in the Preamble, it's a hollow claim.

Now for the rest:

Concluding Remarks: The Declaration in Modern Context

What place does the Declaration of independence have in modern political discourse? Is it a basis for the formulation of law and public policy? Are its principles still binding? Are its themes preserved in the Constitution? Does it aid in interpreting the religion clauses? What does it contribute to the debate over original intent?

The first thing that can clearly be stated about the Declaration is that it is not law. That is, none of its provisions can be law unless enacted into law. The Declaration is inspiring, but its most inspirational parts today remain in the realm of politics, not law. It mostly represents a ringing statement of political philosophy from a past age. The Declaration did not purport to create a new government or to enact any new laws. The bulk of it is exactly what it claimed to be: an announcement to the world of American reasons for renouncing its ties to Great Britain. New governments and new laws were created later-in state constitutions and the Articles of Confederation.

The present Constitution depends on the Declaration's theory that the people are empowered to alter their form of government. The Constitution was not ratified under the procedures for amending the Articles of Confederation but instead by a new and independent act of the American people. The people today could again abandon their Constitution and adopt an entirely new one. They need not use the Constitution's amendment procedures unless they wish to leave the present Constitution in effect. Constitutional interpretation is aided little by the Declaration. The thirteen years between the adoption of the Declaration and the ratification of the Constitution was a period of intense political change. The Declaration's loose, free-wheeling philosophy of the people's "rights," preserved to a large degree in the Articles of Confederation, gradually gave way to the Constitution's more structured framework that was necessary to support a strong national government. if today we find tensions between the Declaration and the Constitution, it is mostly because new views had come to prevail. Throughout the debates of the Convention, there was virtually no discussion of Nature's God, natural rights, or consent of the governed. As Roger Sherman understood it, the question was "not what rights naturally belong to man, but how they may be most equally and effectually guarded in society." The Declaration cannot change the meaning of the Constitution; at most it can make proposed interpretations seem more or less plausible."

The Declaration might be helpful in construing the Ninth Amendment, which provides, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Though it is largely ignored in modern constitutional adjudication, this clause writes the Declaration's philosophy of unalienable natural law rights into positive law. The Declaration is too broadly written, however, to be of much help in defining the content of these unenumerated rights.